General terms and conditions

Sale and delivery terms

1. Applicability of the terms

1.1 All of our tenders and contracts for the supply of our goods and services are based on these terms, including current and future business relations.

1.2 Any agreements that deviate from these terms and any other terms are only binding if we expressly confirm so in writing. Our terms are considered accepted when our goods and services have been accepted.

1.3 These terms apply for business transactions with companies

2. Tender - conclusion of the contract - content of the contract

2.1 Unless otherwise marked as binding, our tenders are subject to change without notice. Oral and written orders are considered accepted when order confirmation has been given in writing or the goods ordered have been delivered by an appropriate deadline.

2.2 The documents enclosed in the tender - such as charts, drawings, figures on weights or dimensions, descriptions of services and other features, and any other information about our products and services - are only approximate unless specified in writing in the contract. Information in technical documents and catalogues are not declarations of a warranty. The buyer must check them before accepting and using the order to ensure that the goods are suitable for the planned application. We reserve the right to make changes to our products in the course of further development and improvements.

2.3 „We reserve all rights of ownership and copyrights to cost estimates, drawings, and other documents; the buyer may not make them accessible to third parties.“

3. An order

3.1 Orders are not considered accepted until the supplier has given written confirmation. The text of the order confirmation is authoritative for the content of the contract thus entered into and for the content of the order. The buyer is obligated to check the entire order confirmation and to notify the supplier of any deviations immediately and in writing.

4. Scope of supply

4.1 „Our written order confirmation is authoritative for the scope of the delivery; if our offer is only valid for a limited term and the goods have to be accepted by a certain date, the tender applies unless an order confirmation is received on time. Subsidiary agreements and changes require our written confirmation.“

4.2 „The manufacture and supply of goods and services can be completely based on the buyer’s plans and other information, but this information only becomes part of the contract if expressly confirmed in writing. No guarantee of the provision of features can be derived hereof. The buyer assumes sole responsibility for the accuracy of its information; we have no obligation to check it.“

4.3 Partial delivery is admissible.

5. Delivery period

5.1 Deadlines and terms are only binding if we have expressly confirmed them as such. Terms do not begin until the buyer has provided all of the necessary services, information, permits, releases, and clarifications and approvals of plans and has upheld all of the agreed payments and other duties. If these prerequisites are not fulfilled in time, the deadlines and terms are extended accordingly.

5.2 The delivery deadline is considered to have been met if the delivery item has left the plant before the deadline or if the buyer has been notified of the supplier’s willingness to make delivery.

5.3 Any events that prevent or hamper the supply of goods and services - including but not limited to acts of God, uprisings, strikes, lockouts, supply shortages of energy or material, intervention by the authorities, and the like - likewise extend the deadline accordingly. If the supply of goods and/or services or part of that supply cannot be provided on time for reasons outside of our control, we also reserve the right to withdraw from the contract in part or whole.

5.4 „If the buyer is responsible for the delay of a shipment, a storage fee can be charged starting in the month after the order has been declared ready for delivery; this fee is 1 % of the order amount for each month begun, unless higher costs can be proven. The buyer also has the right to demonstrate that the damage was lower. The supplier does, however, have the right to dispose of the delivery item otherwise if a deadline for the buyer to accept delivery has been set and has elapsed and to supply the item to the buyer by an appropriately extended deadline.“

5.5 If the buyer incurs damage due to a delay caused by the supplier, the buyer has the right to claim compensation for this damage due to the delay to the exclusion of other claims. For each full week of the delay, 0.5 % and a maximum of 5 % of the sum of the part of the total delivery not supplied on time or not useful in accordance with this contract due to the delay may be claimed.

6 Default of acceptance of the customer

6.1 If the customer does not accept the goods by the agreed date, we are entitled to either stipulate a suitable new acceptance deadline. If this also elapses, we are entitled to dispose of the goods as we see fit or charge the customer immediately and store the goods; in the case of the latter the customer will bear all incurred costs for storage and also the risk. Our rights to withdraw from the contract or claim damages due to non-fulfilment remain unaffected. If we claim damages due to non-fulfilment, we are entitled to charge 30 % of the agreed invoiced sum if the customer cannot provide evidence that the suffered damage is considerably lower. We reserve the right to submit a claim for higher actual damages.

6.2 These conditions also apply if the customer does not accept partial deliveries ordered as part of a call order within the agreed periods.

7. Prices

7.1 Price lists and other general price information are subject to change without notice.

7.2 Unless otherwise agreed, prices do not include packaging, loading, transport, insurance, unloading, assembly, installation, and initiation. Prices are in EUR for delivery ex works or storage excluding the current turnover tax on the day of the delivery. Packaging, freight, any insurance that the purchaser expressly desires, etc. are charged at the prices applicable on the day of the delivery.

8. Payment terms

8.1 Invoices must be paid within 30 days of the invoice date in full to our payment office. If a set payment date is agreed, the purchaser is considered to be in arrears if it does not pay by that date - or, in other cases, if the purchaser has not paid by the date of receipt of our reminder or no later than 30 days after the due date and receipt of the invoice.

8.2 „If the purchaser is in default of payment, all outstanding accounts - including those for the supply of other goods and services, even if they are not yet due or have not been deferred - are due immediately without any further deduction. We reserve the right to charge 8 % interest above the base interest rate of the European Central Bank for all outstanding accounts since that date. The purchaser also has the right to demonstrate that the damage was lower. All outstanding accounts also become payable immediately if it turns out after the contract has been entered into that the purchaser’s economic situation does not make it seem likely that a credit period should be granted according to our business customs. In such case, we reserve the right to make the further supply of goods and services contingent upon cash payments upon delivery; if the purchaser cannot make cash payments on delivery, we reserve the right to demand compensation for damages or to withdraw from the contract to the extent it has not been fulfilled.“

8.3 Complaints that we have not expressly recognized in writing do not allow the purchaser to refuse payment. The purchaser only has the right to retain payments or offset them with counterclaims if its counterclaims are undisputed and have been established as legally effective.

9. General terms and conditions for SIKO GmbH (terms)

9.1 Risk is transferred to the purchaser not later than when the goods supplied reach the purchaser, even if partial deliveries are made and we have agreed to provide additional services, such as shipping costs, delivery, and assembly. At the purchaser’s request, we can insure the shipment at the purchaser’s expense for theft, breakage, and/or damage due to transport, fire, and water or any other risks than can be insuredt.

9.2 If the shipment is delayed due to circumstances caused by the purchaser, risk is transferred to the purchaser on the day on which the supplier was willing to ship to the purchaser. At the purchaser’s request and at its expense, we will provide insurance coverage that the purchaser expressly desires.

9.3 Unless the purchaser otherwise requests, the type of shipment is chosen at the discretion of the supplier.

10. Consumers‘ rights and liability

10.1 The purchaser’s rights require that it have fulfilled its duties to inspect the goods and notify the supplier of any defects in accordance with Section 377 of the German Commercial Code.

10.2 The usual commercial tolerances for dimensions, volume, weight, quality, color, etc. must be taken into consideration for complaints. Reference to DIN standards contains a specific designation of the goods but does not constitute a warranty.

10.3 We reserve the right, at our discretion, either to rework any parts at no charge or to provide replacement parts if the parts originally supplied prove to be useless or not insignificantly defective within the warranty period if the cause lies before the transfer of risk, such as due to poor construction or design, poor materials, or poor workmanship. We must be notified of such defects within 5 days in writing. After this period, the goods are considered accepted. Liability for any defects that were not apparent remains unaffected. However, the purchaser must also notify us of any defects that appear at a later date within 5 days.

10.4 Within the warranty period in accordance with 10.8, we reserve the right to either rework items, provide replacements, or accept returns at the invoiced amount if they prove to be useless or not insignificantly defective but it cannot be demonstrated that we are responsible for the cause of the damage, which must have occurred before the transfer of risk as described in 10.3. Parts replaced are our property. For essential products from third parties, the supplier’s liability is limited to the assignment of liability claims that he may have towards the supplier of the procured products.

10.5 The purchaser has a right to withdraw from the contract within the legal regulations if we do not provide a remedy by an appropriate deadline set for us to reworking or provide a substitute part to replace a defective part with consideration of the legal exceptions.

10.6 If the purchaser cannot use the delivery item for the contractually intended purpose due to an error on our part or a failure on our part to perform proposals or provide consulting or a breach of other contractual ancillary duties - including but not limited to operation and maintenance instructions for the delivery item - the purchaser may apply the regulations in Sections 10.1 - 10.5 and 10.7. to the exclusion of other claims.

10.7 „We are only liable - on whatever legal basis - for damage that does not occur to the delivery item itself if: we have caused the damage intentionally; the company’s executive bodies or middle managers have committed gross negligence; we are culpable of causing danger to life and limb; we maliciously fail to notify the purchaser of defects; we have guaranteed that such defects would not occur; or if there are defects for which the Product Liability Act provides liability in case of injuries or damage to privately used objects. If we culpably violate essential contractual duties, we are also liable for the gross negligence of employees below middle management and for negligence limited to the damage typical of contracts and reasonably predictable. Other claims are excluded.“

10.8 All of the purchaser’s claims - on whatever legal grounds - expire after 12 months. The legal deadlines apply for intentional or malicious conduct and for claims based on the Product Liability Act.

10.9 Changes or servicing made by the purchaser or by third parties done improperly or without the prior consent of the supplier exonerates the supplier of any liability for resulting damage.

10.10 Warranty claims can only be transferred without or prior written consent

11. Reservation of ownership

11.1 The goods supplied remain our property as a conditional commodity until the fees and outstanding accounts for all business relations have been paid in full, including any outstanding accounts concerning the delivery item and any future outstanding accounts. The assertion of this reservation of ownership does not constitute a withdrawal from the contract.

11.2 If the purchaser is in default of payment, we have the right to demand that the conditional commodity be returned after a reminder.

11.3 „If the purchaser processes the conditional commodity to make a new movable object, the processing does not affect our rights and duties; we retain ownership of the new object. If the object is processing into a new object along with goods that do not belong to us, we retain joint ownership of the new object based on the ratio of the value of the conditional commodity to the other goods used in processing. If the conditional commodity is combined or mixed with goods that do not belong to us in accordance with Sections 947, 948 of the German Civil Code, we retain joint ownership in accordance with the legal stipulations. If the purchaser obtains sole ownership through a combination or mixture, it automatically transfers joint ownership to us in relation to the value of the conditional commodity and the other goods at the time of the combination or mixture. In this case, the purchaser shall store the item for which we retain ownership or joint ownership and which also constitutes a conditional commodity as stipulated in the following provisions.“

11.4 „If the purchaser sells the conditional commodity alone or along with other goods that do not belong to us, the purchaser automatically assigns the claims from the sale of the conditional commodity in the value of the conditional commodity along with all ancillary rights from the rest; we accept this assignment. The value of the conditional commodity is the amount of the invoice excluding a 20 % security surcharge, which, however, is not applied if it conflicts with the rights of third parties. If we retain joint ownership of the conditional commodity resold, the assignment of the claims applies to the amount that corresponds to our share of joint ownership. Section 1, sentence 2 applies accordingly for extended reservation of ownership.“

11.5 „If the purchaser includes the conditional commodity as an essential part of the land or building of a third party or if we do so on behalf of the purchaser, the purchaser automatically assigns equivalent claims for compensation by the third party or the party concerned in the amount of the value of the conditional commodity with all ancillary rights, including the granting of a security mortgage with priority over the rest; we accept this assignment. Section 2, sentences 2 and 3 apply accordingly.“

11.6 The purchaser only has the right and authority to resell, use, or install the conditional commodity in the usual course of business and provided that the claim is actually assigned to us in accordance with Section 11. “Reservation of ownership”. The purchaser is not authorized to otherwise dispose of the conditional commodity, such as in pledges or security transfers..

11.7 „The purchaser is authorized to demand settlement of the assigned claims in accordance with Sections 3 and 4 with the proviso of revocation. We shall not make use of our own authority to collect payment as long as the purchaser fulfills its duty to make payments, including those to third parties. On our request, the purchaser must name the debtors for the assigned claim and notify them of this assignment; we also have the right to notify the debtors of this assignment ourselves.“

11.8 If we collect payments for the assigned claims, the purchaser is obligated to assist us comprehensively in collecting payments, especially in creating invoicing, providing information, and handing out documents to the extent this is necessary for collections.

11.9 The purchaser must inform us immediately of any levy of execution on the conditional commodity or the assigned claims by third parties by providing us with the documents needed for an objection.

11.10 „If payments are discontinued or if insolvency proceedings are filed for, the right to resell, use, or install the conditional commodity and the authorization to collect the assigned claims expires; authorization for direct debit also expires in this case for checks or protest.“

11.11 „If payments are discontinued or if insolvency proceedings are filed for, the right to resell, use, or install the conditional commodity and the authorization to collect the assigned claims expires; authorization for direct debit also expires in this case for checks or protest.“

12. Industrial property rights

12.1 Should the delivered goods be in violation of the industrial property rights of third parties, we shall only indemnify the purchaser from the claims of third parties if the purchaser informs us immediately and in writing of such claims, refrains from any action that could hamper our legal position, and gives us sufficient opportunity at our discretion and at our expenses either to have the right of use granted by the third parties or to change or exchange the goods that violate industrial property rights such that no industrial property rights are violated.

13. Final provisions

13.1 German law applies. This also holds if the buyer is a foreigner or has headquarters abroad. The language of the contract is German.

13.2 For both parties and for all current and future claims, the place of execution for the supply of goods and services and for payments and the exclusive venue for the settlement of all disputes, including complaints concerning documentation and legal proceedings related to a bill of exchange, is the supplier’s headquarters if the purchaser is a businessman, a person according to public law, or a special fund according to public law. The supplier also has the right to file suit at any other legal venue for the settlement of disputes.

13.3 Should any provision in this agreement be or become invalid, the validity of the other provisions is not affected.

last update: 12/2010

Purchasing conditions

Applicable for business transactions with companies, legal entities under public law and public separate trust assets.

1. General

1.1 Our purchasing conditions apply exclusively. We do not recognize any contrary provisions or general terms and conditions of the supplier that differ from our purchasing conditions unless this has been expressly agreed upon in advance in writing. Our purchasing conditions also apply in the event that we accept or pay for deliveries of products and services from the supplier (hereinafter referred to as ‘the subject of the contract’) while being aware of contrary provisions or general terms and conditions of the supplier that differ from our purchasing conditions.

1.2 Our purchasing conditions also apply for all future transactions with the supplier.

2. Conclusion of the contract and contract amendments

2.1 Orders, conclusion of contracts and calls for delivery as well as all amendments and supplements must be made in writing. Orders and calls for delivery can also be made via remote data transfer or fax.

2.2 Oral agreements prior to or upon conclusion of the contract must be confirmed in writing by the purchasing department in order to be valid. Paragraph 2.1 sentence 2 remains unaffected.

2.3 Oral agreements after conclusion of the contract, in particular but not limited to subsequent amendments and supplements to our purchasing conditions and including this written form requirement and all types of side agreements, must also be confirmed in writing by the purchasing department in order to be valid.

2.4 Cost estimates are binding and are not to be remunerated unless agreements have expressly been made to the contrary.

2.5 In the event that the supplier does not accept the order within two weeks of receipt, we are entitled to revoke the offer. Calls for delivery become binding unless objected to by the supplier within five working days from the date of receipt.

2.6 The quality assurance guideline for suppliers of SIKO GmbH is a component of this contract.

3. Delivery

3.1 Deviations from the contracts we conclude and our orders are only permissible subject to our prior written approval.

3.2 Dates and deadlines agreed are binding. The date on which we receive the goods is authoritative for measuring compliance with the delivery date or delivery deadline. In the event that delivery is not agreed ‘free works’ (DDU or DDP pursuant to Incoterms 2000), the supplier must provide the goods in good time taking into account the time for loading and dispatching that is agreed with the forwarding agent.

3.3 In the event that the supplier is responsible for set-up or assembly and unless otherwise agreed, the supplier bears all necessary ancillary costs such as travel costs, costs of providing tools and accomodation allowances notwithstanding any provisions to the contrary.

3.4 In the event that agreed deadlines are not complied with, the statutory provisions apply. In the event that the supplier foresees difficulties with respect to production, the supply of start materials, compliance with the delivery date or similar circumstances that could prevent the supplier from delivering on time or delivering the agreed-upon quality, the supplier must immediately inform our department that made the order.

3.5 The unconditional acceptance of delayed delivery or performance does not constitute a waiver of the claims for compensation to which we are entitled due to the delayed delivery or performance; this applies until complete payment has been made of the remuneration due to us for the delivery or performance in question.

3.6 Partial deliveries are generally not permissible unless we have agreed to these expressly or they are reasonable.

3.7 Notwithstanding other substantiation, the figures calculated by us when inspecting goods received are authoritative for quantities, weights and measures.

3.8 In addition to the right to use software belonging to the product delivery scope, including but not limited to its documentation, in the statutory scope (Secs. 69a et seq. UrhG [‘Urheberrechtsgesetz’: German Copyright Act]), we have a right to use it with the agreed specifications and in the scope necessary in order to use the product in accordance with the terms of the contract. We are also entitled to make a backup copy without any explicit agreement.

4. Force majeure

4.1 Force majeure, industrial disputes, excusable plant interruptions, unrest, government measures and other inevitable events entitle us – without prejudice to our other rights – to rescind the contract in full or in part provided that such occurrences are for longer periods and considerably reduce our requirements.

5. Notice of dispatch and invoicing

5.1 The information in our orders and calls for delivery applies. Two copies of the invoice must be sent to the respective pre-printed address stating the invoice number and other sorting criteria; it is not permissible to include invoices with the deliveries.

6. Pricing and transfer of risk

6.1 In the absence of any special arrangement, all prices are delivered free works and duty paid (DDP pursuant to Incoterms 2000) including packaging. VAT is not included. The supplier bears the risk until the goods have been accepted by us or by our appointed agents at the location to which the goods must be delivered in accordance with the order.

7. Terms of payment

7.1 In the absence of any special arrangement, the invoice is payable either within 10 days – subject to a 3% discount – or within 30 days – not subject to a discount – of the date on which the receivable is due and both the invoice and the goods are received or the service is performed. Payment is made subject to verification of the invoice.

8. Claims based on defects and recourse

8.1 Acceptance is subject to examination for freedom from defects and for correctness, completeness and suitability in particular. We are entitled to examine the subject of the contract to the extent that and as soon as this is practicable in the normal course of business; we will provide notification of any defects immediately upon discovery. To this extent the supplier waives its right to object to delayed notice of defects.

8.2 The statutory provisions on defects of quality and title apply unless otherwise regulated below.

8.3 We generally have the right to choose the type of supplementary performance. The supplier has the right to refuse the type of supplementary performance chosen by us subject to the prerequisites of Sec. 439 (2) BGB [‘Bürgerliches Gesetzbuch’: German Civil Code].

8.4 In the event that the supplier does not start to remedy the defect immediately after our request to doso, in urgent cases we are entitled, at the cost of the supplier, to remedy the defect ourselves or have the defect remedied by a third party, in particular but not only to ward off acute danger or avoid major damage. The limitation period for claims based on quality defects is 2 years unless the item was used for a construction in accordance with its customary use and caused its defectiveness. The limitation period for claims based on quality defects commences with the delivery of the subject of the contract (transfer of risk).

8.5 In the case of defects of title the supplier also holds us harmless of any claims by third parties. The limitation period for defects of title is 10 years.

8.6 For parts of the delivery subject to maintenance or repair during the limitation period for our claims based on defects, the limitation period recommences on the date on which the supplier has fulfilled our claims to supplementary performance in full.

8.7 In the event that we incur costs as a result of the defective delivery of the subject of the contract, in particular but not limited to costs for transportation, travel, labor, materials or costs for an incoming inspection that exceeds the customary scope, these costs must be borne by the supplier.

8.8 In the event that we take back products manufactured and/or sold by us due to the defective nature of the subject of the contract delivered by the supplier, or in the event that the purchase price is reduced or other claims are made against us, we reserve the right to recourse to the supplier. The time limit otherwise required is not required with respect to our rights relating to the defect.

8.9 We are entitled to demand compensation from the supplier for the expenses incurred by us vis-à-vis our customer because the customer is entitled to claim against us for compensation of expenses required for supplementary performance, in particular but not limited to costs for transportation, travel, labor and materials.

8.10 Notwithstanding the provision in 8.5, in the cases set out in 8.9 the limitation period expires no earlier than 2 months from the date on which we have fulfilled the claims made against us by our customer and no later than 5 years after delivery by the supplier.

8.11 In the event that a quality defect becomes evident within 6 months of the transfer of risk, it is assumed that the defect already existed at the time the risk was transferred unless this assumption is inconsistent with the item or the defect.

9. Product liability and recall

9.1 In the event that claims relating to product liability are made against us, the supplier is obliged to hold us harmless of such claims provided and to the extent that the damage was caused by a fault in the subject of the contract delivered by the supplier. In cases of fault-based liability this only applies, however, in the event that the supplier is at fault. Where the supplier is responsible for the cause of the damage, the supplier also bears the burden of proof. In such cases the supplier assumes all costs and expenses, including but not limited to the costs of any legal action or recall. Otherwise the statutory provisions apply.

10. Performance of work

10.1 Persons performing work on the factory premises in order to fulfill the contract must comply with the provisions of the respective works rules. Liability for accidents involving these persons on the factory premises is excluded to the extent that the accidents were not caused by an intentional or grossly negligent breach of duties by our legal representatives or vicarious agents.

11. Items provided

11.1 Materials, parts, containers and special packaging provided by us remain our property. Such items can only be used in accordance with the regulations. Processing of materials and assembly of parts is performed for us. It is mutually agreed that we are co-owners of the products manufactured using our materials and parts in proportion to the value of the items provided as a percentage of the value of the overall product. To this extent these are stored for us by the supplier.

12. Documents and confidentiality

12.1 As long as and to the extent that commercial or technical information made available by us (including but not limited to attributes resulting from any items, documents or software provided and other knowledge or experience) is not proven to be publicly available, all such information must be treated confidentially with respect to third parties and can only be made available within the supplier’s company to such persons who must use the information for the purpose of delivery to us. Such persons are also bound by confidentiality. The information remains solely our property. It is not permissible to copy such information or use it for commercial purposes – except for deliveries to us – without our prior written consent. Upon our request, all information provided by us (including but not limited to copies and records made as appropriate) and items provided on loan must be returned to us immediately in full or destroyed. We reserve all rights to such information (including but not limited to copyrights and the right to file industrial property rights such as patents, utility models and semi-conductor protection). To the extent that these have been made available to us by third parties, this reservation of the right also applies in favor of such third parties.

12.2 Products manufactured according to documents created by us such as drawings, models and similar items or according to our confidential information or using our tools or imitations of our tools cannot be used by the supplier itself, nor can they be offered or delivered to third parties. This also applies by analogy to our print jobs.

13. Place of performance

13.1 The place of performance is the location to which the goods are to be delivered in accordance with the order.

14. General provisions

14.1 In the event that any provision and the further agreements made should be or become invalid, this will not affect the validity of the other provisions. The parties to the contract are obliged to replace the invalid provision with a provision that comes as close as possible to the economic intent of the invalid provision.

14.2 The court of competent jurisdiction for all legal disputes arising directly or indirectly from contractual relationships based on these purchasing conditions is Freiburg i. Br., Germany. We are also entitled to choose to sue the supplier at the court of the supplier’s registered offices or branch or at the court of the place of performance.

14.3 The law of the Federal Republic of Germany applies exclusively to the contractual relationships excluding the law of conflicts and the UN Convention on Contracts for the International Sale of Goods (CISG).